United States v. Morris Buckles

399 F. App'x 267

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 12, 2010
• Docket: 09-35493
• Status: Unpublished

Opinion

MEMORANDUM **

Morris Duane Buckles appeals pro se from the district court’s order denying his motion to dismiss and its summary judgment in favor of the United States in the government’s civil forfeiture action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir.2009). We affirm in part, vacate in part, and remand.

The district court properly denied Buckles’s motion to dismiss after re jecting his contentions that the civil forfeiture proceeding constituted double jeopardy and that the government was required to bring the forfeiture action during his criminal trial. See United States v. Ursery, 518 U.S. 267, 292, 116 S.Ct. 2185, 185 L.Ed.2d 549 (1996) (“[Cjivil forfeitures are neither punishment nor criminal for purposes of the Double Jeopardy Clause.”) (internal quotation marks omitted); United States v. Nava, 404 F.3d 1119, 1123 (9th Cir.2005) (“The government may seek the forfeiture of property in either a civil or a criminal proceeding.”)

However, the district court granted summary judgment without giving Buckles fair notice of the requirements and possible consequences of a summary judgment motion, a requirement under Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc). Therefore, we vacate summary judgment and remand. Upon remand, if the government again seeks summary judgment, the district court should consider United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1063 (9th Cir.1994) (evidence which is the product of an illegal search or seizure must be excluded in the civil forfeiture hearing).

Each party shall bear its own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

** This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.